This is an epic tale of how social media discovered, confirmed, won, then lost, then won again in a creative battle. This is a story about rap history, creative rewrites, copyright law, and legal corporate theft. This is a story about butts.

Let’s meet our players.

I Like Big Characters And I Cannot Lie

Sir Mix-A-Lot

Sir Mix-A-Lot

His real name is Anthony Ray but you know him as Sir Mix-A-Lot. In 1992 he brought us one of the greatest songs of the 90s, if not ever: Baby Got Back. If you don’t know the song I’m tempted to tell you to never read this blog ever again. But in the spirit of bringing people together, the same spirit that inspired Sir M to record this song, I will simply embed the video below so you can either hear it the first time or listen to it again.

This well-known song won Mr. A-Lot the 1993 Grammy award against an amazing set of nominees that included Marky Mark (now Mark Wahlberg, two-time Oscar nominee), Queen Latifah (one-time Oscar nominee), LL Cool J (just hosted the Grammys), and MC Hammer (watches the Grammys almost every year).

The video shown above was so controversial in its day that MTV would only play it at night. Yes, MTV used to show music videos. Fun trivia about the song: the line “Me so horny” at about 0:53 in the video above was sampled from the movie Full Metal Jacket (it was also sampled in 2 Live Crew’s Me So Horny).

Jonathan Coulton

Jonathan Coulton

Singer-songwriter Jonathan Coulton conducted an experiment in 2005 to determine whether a musician could make a living on the Internet releasing music under the Creative Commons license. The project, Thing A Week, released a new song every week for free with the hopes that people would donate to support his career. The song for Week 5 was Baby Got Back but unlike any version ever recorded. Just so you can compare go back and listen to the original Sir Mix-A-Lot version. Even if you just listened to it. Can you ever really listen to it enough?

Now that you’ve made your computer speakers happy happy happy, take a listen to Mr Coulton’s version.

I think we can all agree that’s quite an interpretation. And it’s awesome. As he wrote on the blog post releasing the song,

I’ve wanted to cover this song for a long time, because it is excellent – there’s a wonderful message in there for those of you who have big butts. In the proud tradition of many white Americans who came before me I hereby steal and white-ify this thick and juicy piece of black culture.

As the Thing A Week project progressed the songs were gathered together and released as albums. Most of the songs are complete originals but since this song is based on Sir Mix-A-Lot’s original Coulton acquired a compulsory license to the song in order to release his own version commercially.

Glee

Glee

Glee is a TV show on Fox featuring high school and college students that break out into song a lot. Kids these days. It began as a show about a high school choir but quickly turned into a musical drama that just happens to include a choir as a way to get them to sing songs. Other devices used to get them to sing songs: walking down the hallway, applying make-up in the bathroom, or changing a car’s oil.

On January 24, 2013, Glee aired the “Sadie Hawkins” episode. The plot doesn’t matter (to this post, anyway) but part of it involved a group trying to recruit a new member by showing how they like to put their own spin on classic songs. So they invited him to a theater and sang the following version of Baby Got Back.

Sound familiar? Yes, our three players have now collided in a copyright battle played out on a social media stage.

His Homeboys Tried To Warn Him That Glee Song Sounded So Fam(iliar)

As Coulton explained on his blog, someone pointed him to information on the Internet a few days before the Glee episode aired that included some audio of their Baby Got Back version. Glee had never spoken to him about the song so he was a bit confused. The episode aired a few days later and the official Glee track was released. It didn’t just sound similar, it sounded identical.

A fan of Coulton’s actually put the two tracks together and posted it on Soundcloud, a social media site for sharing audio files. The results are below and staggering. The right audio track is the Coulton version, the left audio is from Glee. Take a listen.

If you have headphones you can alternate ears to confirm that they are two different songs being played, but if you listen to them both at once you’ll notice that not a single note is out of sync. This is not a case of Glee hearing Coulton’s version and deciding to make their own–they simply took his music and put new vocals over it. You can hear the difference in singing, but the music is exactly the same.

Coulton’s fans were furious while Coulton was stunned. How can a sophisticated show such as Glee run by a giant company such as Fox think they can get away with stealing his music without so much as a credit or a thank you?

The problem for Coulton? What Glee did was absolutely legal, at least from a copyright perspective.

My Copyrighter Don’t Want None Unless He’s Got Rights, Son

When Coulton decided to start selling his version of Baby Got Back along with his original songs he knew that he needed the proper rights to distribute a song based on a protected work like Sir Mix-A-Lot’s version. At this point he had two potential licensing choices: he could get the automatic compulsory license that is available to everyone or he could try to negotiate an individual deal with Sir Mix-A-Lot (or the song’s rightsholder) to create a derivative work (a new, creative work that is based on another creative work belonging to someone else). Individual deals like the latter can be difficult and the original rights holder can say no. Maybe that was why Coulton decided to go with the compulsory license. Or maybe just because it was easier.

The good news about compulsory licenses is that it is, as the name tells you, compulsory. There is no negotiating and no issue with the rights holder saying no as US copyright law requires these licenses to be granted for any song recorded. The bad news is that while they are easy to obtain they are limited in what they protect. 17 USC § 115 covers compulsory licenses and subsection (b) discusses the scope of that license:

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.

(Emphasis added)

So the license here is a double edged sword. For Coulton’s compulsory license to be valid he must say that his song does not change the basic melody or fundamental character of the work–if that is true then all his prior music sales are protected but it also means he has no rights he can assert under copyright. If he were to instead argue that his song does change the basic melody of the song then he may very well have a derivative work that he could sue Glee for copying–but at the same time he would expose himself to copyright infringement for creating an unlicensed derivative work. And even taking the calculated risk where he sues Fox with the hopes that Sir Mix-A-Lot doesn’t sue him, a judge may very well believe that Coulton doesn’t have clean hands (the idea that you shouldn’t have done something bad before you come in and sue someone for doing something bad). Either Coulton has no basis for a lawsuit or he opens himself to defending a massive lawsuit.

I’m Tired Of Searching On Bing, Saying Copyright’s My Only Thing

Here’s the great thing about a songwriter who made a living out of releasing music on the Internet and built an incredibly loyal fan base–Coulton knew that there are other ways to fight this kind of legal theft. As he documented on his blog, Coulton re-released his song with the brilliant title of Baby Got Back (In the Style of Glee). Brilliant because anyone who, for example, searches for “Glee Baby Got Back” on Amazon’s MP3 store will see the following results.

Not only can he try and get some of the credit for his creative efforts in terms of sales, but his fans have also taken the cause to the song reviews as well. As of the time I’m writing this post, his track on Amazon has 22 ratings for a 5 star average. The Glee version has 13 reviews for an average of 1 star. On iTunes the numbers are even more striking. Coulton’s version has 3,322 ratings for an average of 5 stars. Glee’s version has 2,614 ratings for an average of 1.5 star. And you can guess what all the reviews say. (Or you can search yourself because I can’t direct link to iTunes reviews)

So They Toss The Lawsuit And Leave It, But Coulton Pulls Up Quick To Retrieve It

There may also be alternative legal theories that Coulton could pursue against Glee and Fox, but at the core it may be difficult to succeed in an end-run around copyright laws (which it would be). But even though Coulton didn’t get the credit or acknowledgement from Glee he may still emerge the victor if enough people hear the story.

Personally, I first saw the Glee version (yes, I watch–is that really surprising given that I did a blog post about what social media could learn from Les Miserables?) before learning the full story. After learning the facts I can see that Glee may be in the right, legally speaking, but that doesn’t make them right. So I bought the Coulton album and even though I’m a temporary Nielsen household I’m not watching Glee until my Nielsen gig is up.

Coulton made his career on individuals supporting his creative efforts thanks to social media. It’s only fitting that social media rallied to his defense and I’m happy to be one more person to tell Coulton “I’ve got your back.”

4 responses to “Butt That Can’t Be Right!”

Loving the rap subtitles – you’re wasted as a SoMe lawyer! But watching Glee – I’m shocked.
FYI, no compulsory licensing in UK law that I’m aware of, so Coulton would have had to get copyright owner permission in first place to copy a ‘substantial part’ of the original song (none of the other CDPA exceptions apply and copyright is still infringed to create the ‘derived work’). But, having done that, he’d then have a new copyright work which obviously would have been breached by Fox!

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.